The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Saturday, 14 April 2012

Reflections on Babar Ahmed and others v United Kingdom: Extradition: European Court of Human Rights

European Court of Human Rights - Strasbourg

On 10th April, the European Court of Human Rights (Fourth Section) - (the court) - sitting as a Chamber delivered judgment in the case of six men who are facing extradition from the United Kingdom to the United States of America - see the JUDGMENT.

The applicants made two complaints - first that conditions at ADX Florence (which could be made worse by "special administrative measures") would violate Article 3 and, secondly, if convicted they would
face sentences of life imprisonment without parole and/or extremely long
sentences of determinate length in violation of Article 3.

The first of those complaints (i.e. conditions at ADX Florence) was held tobe inadmissible in relation to the 4th applicant (Abu Hamza) since, given his physical condition, there was "no real risk of his spending anything more than a short period of time at ADX Florence" [judgment para 5].

The court was not in a position to finalise the 2nd applicants case and
required further submissions from the parties. Examination of his
complaints was therefore adjourned.

Article 3 of the European Convention states - "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The court held that in relation to the 1st, 3rd, 5th and 6th applicants there would be no violation of Article 3 as a result of conditions at ADX Florence and the imposition of Special Administrative measures post-trial.

The court also held that there would be no violation of Article 3 as a result of the length of the sentences which would be likely for the 1st, 3rd, 4th, 5th and 6th applicants if convicted.

The court's judgment is not final since Chamber judgments may be referred within 3 months to the Grand Chamber - (Article 43 of the Convention). General opinion at the time of writing this post appears to be that the case will be referred by one or more of the applicants. It is possible, under Article 43, for the Grand Chamber to reject any request to refer.

The court applied Rule 39 of the Rules of Court which, in effect,
prevents extradition taking place until further notice. This is a
holding position to allow for any reference to be made to the Grand
Chamber.

ADX Florence, Colorado

Overview of the judgment:

The full Chamber judgment is lengthy - extending to 52 pages and 258 paragraphs.

Procedural matters [paras. 1 to 7]

Facts of each of the cases [8 to 61] - this shows that each applicant faces very serious charges in the USA and that legal processes in the UK have already been very extensive.

Relevant domestic and international law on Article 3 and Extradition [62-80] - the applicable bilateral treaty on extradition was the 1972 UK-USA
Extradition Treaty and not the latest 2003
Treaty. Article IV of the 1972 Treaty provided that extradition could
be refused unless the requesting party gave assurances (satisfactory to
the requested party) that the death penalty would not be carried out. Such assurances had been received and also assurances that the men would be prosecuted in a Federal Court and would not be designated as enemy combatants.

Relevant Domestic and International law and practice on detention at ADX Florence [81-121]

Relevant domestic and international law and practice on life sentences is considered in detail [122-156].

The relevance, if any, of the extradition context to complaints made under Article 3 [paras. 161-179]

Finally, a number of other complaints made by the 5th and 6th applicants were dealt with relatively briefly [245-254].

Art. 3 and Extradition

In R (Wellington) v Secretary of State for the Home Department [2008] UKHL 72, a majority of the House of Lords held that, in the context of extradition, a distinction was to be drawn between torture and lesser forms of ill-treatment. Real risk of torture would result in an absolute bar on extradition. However, for other ill-treatment, the House of Lords held that a so-called "relativist" approach applied which their Lordships saw as essential if extradition was to continue to function. However, a minority (Lords Scott and Brown) disagreed. For the minority, if the ill-treatment risked is properly classifiable as inhuman or degrading then extradition should not take place.

The European court considered this and ruled that the assessment of whether the minimum level of
severity has been met for the purposes of Art 3 must be assessed independently of the reasons for removal or
extradition [168, 172] and [176]. However, it was not the case that ANY
form of ill-treatment would act as a bar to removal [177] and various factors came into play [178]. Overall, the
court has been very cautious in finding that removal from a convention
State would be contrary to Art. 3 and this was particularly so when the
requesting State was one with a "long history of respect for democracy,
human rights and the rule of law" [179].

It is questionable whether this has truly clarified the law. It is certainly not easy to state the law with any certainty and it therefore seems possible that the Grand Chamber may be requested to review this part of the judgment.

Art. 3 and Detention at ADX Florence:

a) Argument and submissions -

The court received a considerable volume of evidence about ADX Florence. Material was supplied by officials at the prison and letters were received from the US Department of Justice about the so-called "Step Down" programme which applied to prisoners. The applicants also submitted evidence as to the effect of solitary confinement on prisoners and this included expert psychiatric evidence to the effect that, although supermax detention did not amount to sensory deprivation, there was an almost total lack of meaningful human communication. One expert (Professor Rovner) referred to one of the former wardens at ADX describing the prison as "a clean version of hell."

The court looked at the 8th Amendment to the US Constitution - prohibition on cruel and unusual punishments [104-108] and a number of US court cases were considered [110-113]. It is interesting to note that Article 3 gives a greater degree of protection that the US 8th Amendment.

International materials relating to solitary confinement (which can take many forms) were considered [114-121] including the Council of Europe Guidelines on human rights and the fight against terrorism and certain materials from the United Nations. The UN Special Rapporteur on torture had found that solitary confinement could amount to cruel, inhuman or degrading treatment. The rapporteur called on States to use solitary confinement only exceptionally, as a last resort, for the shortest time possible.

The arguments of the government and the applicants are at 182 to 199 of the judgment. Broadly speaking, the government pointed out that the Council of Europe recognised that terrorism offences justified more restrictions than those applied to other prisoners [182]. On this basis, and given the evidence provided by ADX officials and the Department of Justice, the applicant's complaints were unsustainable. There were provisions for transfer, after time, to other prisons; the Bureau of Prisons had shown itself willing and able to respond to requests for change in conditions; inmates had recourse to the courts and the US courts "applied a legal analysis which was in reality no different from that applied by the" European Court of Human Rights. The applicants countered this by pointing out that, in the UK, they were safely held in much less secure conditions [187]; inmates at ADX Florence had, in practice, great difficulty challenging special administrative measures [188]; the conditions of detention amounted to solitary confinement of an indefinite duration and did not comply with Art 3 [189]; admission to the "step down" programme was highly capricious and was at the discretion of staff and inmates could be returned to their original unit at any stage for even a minor disciplinary violation [191]. The applicants also argued that the scientific evidence on the adverse effects of solitary confinement on mental health was unequivocal [192].

3rd party interveners submitted that there was a substantial gap between the protection offered by Art. 3 and the 8th amendment protection [197-198] and there were significant obstacles to prisoners seeking to vindicate their constitutional rights through the federal courts [199].

b) The court's view -

Art 3 enshrined one of the most basic convention rights [200] but, to come within Art 3, ill-treatment had to attain a minimum level of severity which depended on all the circumstances of the case. A violation would arise from detention if it went beyond the inevitable element of suffering or humiliation connected with a given form of legitimate punishment [202]. The court's position on solitary confinement is set out at [205] to [212]. Essentially, whether it came within Art 3 depended on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. Procedural safeguards were required and solitary should be ordered only exceptionally and after every precaution has been taken. The court noted the importance of recreation and exercise [213-214] and then stressed the importance of medical care given the effects of detention on those who are ill [215].

The 4th applicant (Abu Hamza) asked the court to reconsider its decision to declare his complaint about ADX Florence inadmissible. The court refused to do so [216-217] and stuck to the position that his detention at ADX Florence would be "impossible" though, it was noted, that another man had been held there despite having "severe heart problems, blindness and diabetes." This section of the judgment does not seem to be entirely convincing.

In relation to applicants 1,3, 5 and 6, the court found that the accommodation met Art 3 standards [219]. There was no basis for the submission that placement at ADX Florence was without any procedural safeguards [220]. Although the court accepted that the applicants were not physically dangerous, the US authorities would be justified in considering them, if convicted, to pose a security risk justifying strict limitations on their activities [221]. Further, the men would not be kept in "complete sensory isolation or total social isolation" [222] and they would have a "great deal of in-cell stimulation through television and radio channels" etc. Next, the court accepted the evidence of the US authorities that there would be a real possibility for the applicants to gain entry to the "step down or special security unit programmes" [223]. Finally, although applicants 1, 3 and 5 relied on various mental health problems, this had not prevented them being held in high-security prisons in the UK and there was expert evidence (Dr Zohn) that psychiatric services would be able to treat their conditions [224].

Hence, the court held that there would not be a violation of Art. 3 in relation to detention at ADX Florence.

Art. 3 and Lengthy sentences:

a) Argument and submissions -

The court considered evidence provided by the US Department of Justice as to the likely sentences the applicants would receive if convicted. Only in relation at the 5th applicant - (accused of 269 murders) - would a mandatory life sentence be imposed though others might receive discretionary life sentences. the applicants submitted material suggesting that a trial judge's discretion in sentencing was not as broad as the Dept. of Justice had suggested and the outcome could be very long terms such as, for Abu Hamza, two life sentences plus 95 years.

The court considered 8th amendment case law on "grossly disproportionate" sentences [134-136]. The US Supreme Court had identified two categories where sentences can be excessive and in breach of the 8th amendment. One is where, in all the circumstances, the sentence is excessive. The other is where a particular punishment (e.g. death) has been applied to certain crimes - e.g. capital punishment for rape was prohibited in Coker v Georgia 1977.

Then follows consideration of the law about grossly disproportionate sentences in Convention states [137-156]. The court considered life sentences in the contracting States [138], Council of Europe texts [139], the International Criminal Court [140], the European Union [141]. The position in the UK is considered at paras. 142 to 144 where the court looked at R v Lichniak and Pyrah [2003] 1 AC 903 (compatibility of mandatory life sentence with Arts. 3 and 5); R v Home Secretary ex parte Hindley [2001] 1 AC 410 and R v Bieber [2009] 1 WLR 223. In Bieber, the Court of Appeal considered that whole life terms imposed under the Criminal Justice Act 2003 were compatible with Art 3. The German position is considered at [145], Canada at [148] and Other jurisdictions [151].

The government argued that unless a life sentence was grossly or clearly disproportionate, an irreducible life sentence would only violate Art 3 if the prisoner's further imprisonment could no longer be justified for the purposes of punishment or deterrence [227]. No court could determine at the outset of a sentence when that point might be reached and, sometimes, it might never be reached. Therefore, in the extradition context, unless a life sentence was grossly or clearly disproportionate, its compatibility with Art 3 could not be determined in advance of extradition. [Comment: Clearly, if the court accepted this argument then Art 3 objections to extradition based on sentence length would become exceptional]. In the present cases, none of the likely sentences would be grossly disproportionate and all the sentences were reducible [228 - 230]. The applicants argued that a violation of Art 3 would arise because the sentences were likely to be disproportionate. Their sentences were, in effect, mandatory sentences leaving no room for consideration of individual cases [231]. US trial judges had a limited sentencing discretion and guidelines called for terrorism offences to be punished with the statutory maximum [232].

b) The court's view -

It was true that if an applicant could show that the sentence would be grossly disproportionate then Art 3 would be infringed. However, sentencing practice varied greatly between States and it would only be in exceptional cases that an applicant would be able to show that he or she would face a grossly disproportionate sentence [235-238]. The court then considered various types of life sentence [239]. Even a mandatory life sentences without the possibility of parole would not necessarily be incompatible with Art 3. Whilst the trend in Europe was against such sentences, such a sentence could be imposed if it was not grossly disproportionate. However, an Art 3 issue could arise when it can be shown that (i) a prisoner's continued imprisonment can no longer be justified on any legitimate penological grounds and (ii) that the sentence is irreducible de facto and de jure.

Most of the applicants faced, at worst, discretionary life sentences. Such sentences were by no means certain [243]; before imposing such a sentence the judge would consider all relevant aggravating and mitigating features. In relation to discretionary life sentences, an Art 3 issue would only arise when it can be shown that (i) a prisoner's continued imprisonment can no longer be justified on
any legitimate penological grounds and (ii) that the sentence is
irreducible de facto and de jure. Given that none of the applicants have been convicted, still less begun to serve any sentences, the Court held that they had not shown that, upon their extradition, their incarceration would not serve any legitimate penological purpose. If that point were ever reached, the US authorities would not refuse to apply mechanisms to reduce their sentences.

Only one applicant (who faces 269 counts of murder) was liable to receive multiple mandatory life sentences without possibility of parole. However, the court held that such sentences would not be disproportionate for such offences and noted that this applicant had not adduced any evidence of exceptional circumstances which would indicate a significantly lower level of culpability on his part [244].

Thus, the court found that there would be no violation of Art 3 in their cases.

General comment and links:

The case is a significant win for the British government and, not surprisingly, it was welcomed in the popular media. It is a firm decision made in the context of serious terrorism cases and, of course, persons convicted of such offences merit lengthy sentences. Nevertheless, whilst it may be desirable to extradite these men, some concerns should remain which the Grand Chamber would do well to address.

Whilst the judgment does something to clarify the law relating to Article 3 and Extradition [paras. 166-179] the whole range of cases from Soering 1989, via Chahal (1997) and Saadi (2008) to the present decision should be reviewed with the purpose of the Grand Chamber setting down a clear statement of the law.

The written submissions of the respected 3rd Party Interveners were rejected - [see paras. 7 and also 197-199]. The interveners included the American Civil Liberties Union and Reprieve. The submissions were referred to briefly and raised serious questions about the reality of the system in the USA. It is unclear precisely why those arguments were rejected so decisively and fuller explanation was merited.

The decision may give encouragement to governments in European Convention States to create similarly severe detention regimes with only minimally compliant procedural safeguards for those subjected to such regimes.

The Guardian published Abu Hamza: Europe's judgment call and asked us to imagine the wave of indignation that would
be swamping the British media if European judges had ruled that Abu Hamza could
not be extradited. "Tuesday's judgment was a powerful practical
corrective to the shameless assumption that judges, and the European court
judges in particular, do not inhabit the real world."

Joshua Rozenberg - The Guardian 10th April -"European Court makes right call on Abu Hamza" Given that this decision was reached on the papers, Rozenberg sees the likelihood of a reference to the Grand Chamber as low. He ends by saying - "But no human rights court would last very long if it took the view that
mass murderers and other convicted terrorists should not be locked up
for a very long time indeed. And if that's a "political" judgment, then
it's a judgment I share."

[Note: the court's judgment was published and is subject to editorial revision. This will be necessary to ensure that references to which applicant faces 269 counts of murder are correct since in some paragraphs it is said that this applies to the 5th applicant and elsewhere the 6th].